Smith v. State, SC18-822

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation320 So.3d 20
Parties Donald James SMITH, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. SC18-822,SC18-822
Decision Date22 April 2021

320 So.3d 20

Donald James SMITH, Appellant,
v.
STATE of Florida, Appellee.

No. SC18-822

Supreme Court of Florida.

April 22, 2021


H. Kate Bedell and Richard Randall Kuritz of Law Offices of Bedell & Kuritz, Jacksonville, Florida, for Appellant

Ashley Moody, Attorney General, and Charmaine M. Millsaps, Senior Assistant Attorney General, Tallahassee, Florida, for Appellee

PER CURIAM.

Donald James Smith appeals his judgment of conviction and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm.

I

On June 21, 2013, Smith met eight-year-old Cherish Perrywinkle, her sisters, and her mother, Rayne, at a Dollar General store in Jacksonville. Smith overheard Rayne explain to an employee that she could not afford to purchase a dress for Cherish, and offered to drive the Perrywinkles to Walmart and buy clothes for the family. Smith explained to Rayne that his wife had a gift card and would meet the group there. At Walmart, they shopped together for hours. It got late and the Perrywinkles had not eaten, so Smith said he would buy them all cheeseburgers at a McDonalds inside the store. Instead, at 10:44 p.m., he vanished with Cherish. Surveillance cameras caught Smith leading her to his van, as well as the two of them driving away.

320 So.3d 25

Cherish was not seen alive again. The next morning, with the help of witnesses reporting the location of Smith's van, police located Cherish's body in a creek behind a church, under a pile of debris. Cherish had been brutally raped, then strangled to death. An officer identified Smith, who was soaking wet, behind the wheel of the same van that had left Walmart. It contained the things Rayne had bought at Dollar General. Smith was arrested and charged with kidnapping, sexual battery of a person under twelve, and first-degree murder.

News outlets in Florida and the United States covered the murder extensively. In Jacksonville, live broadcasts highlighted Smith's prior sex crime convictions in 1977, 1992, and 2009. Outlets in Panama City, Tallahassee, Orlando, Tampa, and Miami reported on the murder. Even CNN and Fox News picked up the story. City news stations dedicated webpages to the case and many blogs and social media posts discussed the murder.

Media outlets also covered the effect of the murder on the local community, and the community's outreach to Rayne. Hundreds of people attended Cherish's funeral, which was locally televised. Eighteen to nineteen hundred people reportedly signed the guest book at Cherish's viewing. Families that had never met the Perrywinkles stopped by their home with groceries.

Smith's case progressed to trial, and in 2015, Smith's defense team filed a motion to change venue. They argued that widespread media coverage had painted Smith as a monster who should be executed, a sexual predator who was guilty beyond doubt. Smith maintained that the media had adopted the State's theory of the case, and that the State's themes persisted on social media two years after Cherish's death. The trial court held a hearing on the motion for change of venue, but reserved ruling until after jury selection. In light of the extensive pretrial publicity, the trial court used a written juror questionnaire and individual voir dire regarding exposure to press coverage as part of the jury selection process. The questionnaire asked about jurors’ knowledge of the case and witnesses, and about any opinions they had formed about the case and the death penalty. Three hundred potential jurors completed these questionnaires. The court ultimately empaneled the jury without an objection from defense counsel or a request for a final ruling on its motion to change venue.

Before trial began, Smith also filed a motion in limine to prevent the State from offering autopsy photos of the victim. Counsel argued that because Dr. Valerie Rao, the chief medical examiner for Duval County and a trained pathologist, was to testify to Cherish's injuries, there was no need to introduce photographs of those injuries. Smith's team argued that the pictures’ unduly prejudicial emotional effect would outweigh their probative value. The trial court denied Smith's motion.

In the State's opening statement at trial, the prosecutor described what took place at Walmart and stated, "Every mother's darkest nightmare became Rayne Perrywinkle's reality." Smith objected to the comment on the grounds that it was argumentative, and the court overruled the objection.

Later in the proceedings, the State called Dr. Rao to testify to the extent of Cherish's injuries. Dr. Rao explained that she had testified in hundreds of cases as an expert witness, providing her opinion on various potential causes of death. Dr. Rao had performed Cherish's autopsy and had been present at the creek when her body was recovered. As Dr. Rao testified, the State introduced twenty-six pictures of Cherish's autopsy into evidence. Dr. Rao

320 So.3d 26

described injuries on Cherish's scalp, chest, legs, arm, neck, chin, lip, nose, eyes, genitals, and throat. When the prosecutor asked Dr. Rao about Cherish's throat, Dr. Rao stammered slightly, and the following exchange occurred:

Prosecutor: I'm going to show you two more photographs of the dissection taken of Cherish Perrywinkle's throat. Will you first tell the jury what you saw when you dissected her throat?

Dr. Rao: Yes. So what we do is – I'm sorry. I just need a break. Have [sic] about five minutes.

Court: You want a five-minute break? I think we'll all take a break for ten minutes. Thank you.

The judge dismissed the jury and defense counsel moved for a mistrial, arguing that Dr. Rao's response was so prejudicial that it could not be cured by any jury instruction. The court denied the motion. After the ten-minute recess, Dr. Rao resumed her testimony without further interruption. The State later called a crime laboratory analyst, who testified that Smith's DNA was found on and inside Cherish's body. He put the odds at one in 35 quintillion that the DNA belonged to someone else. The State also produced surveillance footage of Smith leading Cherish from Walmart to his van.

During closing argument, the State at one point stated, "And from the grave she's crying out to you, [‘]Donald Smith raped me. Donald Smith sodomized me. Donald Smith strangled me until every last breath left my body.[’]" Counsel for Smith did not object to this statement, and indeed presented no closing argument.

The jury deliberated for nineteen minutes before unanimously finding Smith guilty of kidnapping, sexual battery of a person under twelve years old, and first-degree murder. By special verdict, the jury convicted Smith of both premeditated and felony murder with kidnapping and sexual battery as the underlying felonies.

At the penalty phase of trial, Smith presented nine witnesses, including a psychologist, a neurologist, and his son. The State presented one witness, the victim of a 1992 attempted kidnapping by Smith. Following these presentations, the jury unanimously recommended that Smith be sentenced to death.1 After conducting a Spencer hearing,2 the trial court entered a sentencing order accepting the jury's recommendation and imposing the death penalty.

II

On appeal, Smith raises the following five claims: (a) the trial court abused its discretion in denying Smith's motion for change of venue; (b) the trial court abused its discretion in denying Smith's motion for mistrial during the medical examiner's testimony; (c) the trial court abused its discretion by denying Smith's motion to exclude autopsy photos; (d) the trial court abused its discretion by overruling an objection to the prosecutor's opening statement and committed fundamental error by not granting a mistrial during the prosecutor's

320 So.3d 27

closing statement; and (e) the cumulative effect of the errors in the case deprived Smith of a fair trial. We address each claim in turn.

A

Smith argues that the trial court erroneously denied his motion for change of venue. "[A] defendant may move for a change of venue on the ground that a fair and impartial trial cannot be had in the county where the case is pending for any reason other than the interest and prejudice of the trial judge." Fla. R. Crim. P. 3.240(a). A trial court should grant a change of venue if "the ... state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom." Manning v. State , 378 So. 2d 274, 276 (Fla. 1979).

Generally, we review a trial court's ruling on such a motion for abuse of discretion. However, as is the case with most trial objections, an objection to the trial court's denial of a motion for a change of venue must be preserved for appellate review. That is, "the issue or legal argument must be raised and ruled on by the trial court." Rhodes v. State , 986 So. 2d 501, 513 (Fla. 2008). If an issue is not preserved, it is reviewed only for fundamental error. Such an error "reach[es] down into the validity of...

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7 practice notes
  • Rodriguez-Olivera v. State, s. 2D18-706
    • United States
    • Court of Appeal of Florida (US)
    • October 13, 2021
    ...the fair and impartial trial that is the inalienable right of all litigants in this state and this nation." Smith v. State , 320 So. 3d 20, 33 (Fla. 2021) (second alteration in original), reh'g denied , SC18-822, 2021 WL 2425310 (Fla. June 14, 2021). Taken in the context of this record......
  • Ritchie v. State, SC20-1422
    • United States
    • United States State Supreme Court of Florida
    • June 9, 2022
    ...objection, we consider whether, 8 cumulatively, the comments we determine are improper amount to fundamental error. See Smith v. State, 320 So.3d 20, 27 (Fla. 2021) ("If an issue is not preserved, it is reviewed only for fundamental error."); see also Braddy v. State, 111 So.3d 81......
  • Rodriguez-Olivera v. State, 2D18-706
    • United States
    • Florida District Court of Appeals
    • October 13, 2021
    ...defendant the fair and impartial trial that is the inalienable right of all litigants in this state and this nation." Smith v. State, 320 So.3d 20, 33 (Fla. 2021) (second alteration in original), reh'g denied, SC18-822, 2021 WL 2425310 (Fla. June 14, 2021). Taken in the context of this......
  • Brown v. State, 4D20-1426
    • United States
    • Court of Appeal of Florida (US)
    • March 9, 2022
    ...by video for his sentencing hearing. Thus, we can review the defendant's argument only for fundamental error. See Smith v. State , 320 So. 3d 20, 27 (Fla. 2021) ("If an issue is not preserved, it is reviewed only for fundamental error."); Shepard v. State , 227 So. 3d 746, 749 (Fl......
  • Request a trial to view additional results
7 cases
  • Rodriguez-Olivera v. State, s. 2D18-706
    • United States
    • Court of Appeal of Florida (US)
    • October 13, 2021
    ...the fair and impartial trial that is the inalienable right of all litigants in this state and this nation." Smith v. State , 320 So. 3d 20, 33 (Fla. 2021) (second alteration in original), reh'g denied , SC18-822, 2021 WL 2425310 (Fla. June 14, 2021). Taken in the context of this record......
  • Ritchie v. State, SC20-1422
    • United States
    • United States State Supreme Court of Florida
    • June 9, 2022
    ...objection, we consider whether, 8 cumulatively, the comments we determine are improper amount to fundamental error. See Smith v. State, 320 So.3d 20, 27 (Fla. 2021) ("If an issue is not preserved, it is reviewed only for fundamental error."); see also Braddy v. State, 111 So.3d 81......
  • Rodriguez-Olivera v. State, 2D18-706
    • United States
    • Florida District Court of Appeals
    • October 13, 2021
    ...defendant the fair and impartial trial that is the inalienable right of all litigants in this state and this nation." Smith v. State, 320 So.3d 20, 33 (Fla. 2021) (second alteration in original), reh'g denied, SC18-822, 2021 WL 2425310 (Fla. June 14, 2021). Taken in the context of this......
  • Brown v. State, 4D20-1426
    • United States
    • Court of Appeal of Florida (US)
    • March 9, 2022
    ...by video for his sentencing hearing. Thus, we can review the defendant's argument only for fundamental error. See Smith v. State , 320 So. 3d 20, 27 (Fla. 2021) ("If an issue is not preserved, it is reviewed only for fundamental error."); Shepard v. State , 227 So. 3d 746, 749 (Fl......
  • Request a trial to view additional results

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